Chan Fai-kwong v. The Queen
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CACC000953/1973 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) ----------------- Criminal Appeal No. 952 of 1973 -----------------
Coram: C. Young, Registrar Date of Judgment: 5th March 1974. -------------------------------------------------------------------- NOTICE OF SUPERSESSION OF JUDGMENT -------------------------------------------------------------------- 1. TAKE NOTICE that the judgment in respect of the above-mentioned criminal appeal has been superseded by a written "joint" judgment on criminal appeals Nos. 950, 952 and 953 of 1973.
Representation: IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) ----------------- CRIMINAL APPEAL NO. 950 OF 1973 -----------------
CRIMINAL APPEAL NO. 952 OF 1973 -----------------
CRIMINAL APPEAL NO. 953 OF 1973 -----------------
Coram: Briggs, C.J., Li and Cons, JJ. Date of Judgment: 18th February 1974. ----------------- JUDGMENT ----------------- 2. The court heard these three appeals against sentences at the same time. The facts are similar in each case. 3. In Criminal Appeal No. 950, the appellant pleaded guilty to five offences. The first offence was placing a cargo on board a vessel without the consent of the owner contrary to section 16(1) of the Import and Export Ordinance. The other charges were for the offence of being in possession for the purpose of trade, goods to which a forged trade mark had been applied contrary to section 3(2) of the Merchandise Marks Ordinance. 4. The appellant was a seaman and just before his vessel sailed for West Africa, his cabin was searched and a quantity of goods were found in his locker; these included five cartons which contained a total of 2,200 watches. There were also some 87 packages of T-shirts and other goods belonging to him in a store on board. The goods were not in the vessel's cargo manifest. 1,144 of the watches bore forged trade marks of various makes, or were fraudulently marked "SWISS MOVT." The appellant was sentenced to one month's imprisonment on each of the other charges, the sentences to run concurrently. 5. The appellant in Criminal Appeal No. 952 pleaded guilty to one offence of placing cargo on board without the consent of the owner and two offences of being in possession of watches which either bore a false trade description or which had a forged trade mark on the dial. The cargo which, in part, comprised 389 watches was not on the ship's manifest. Ten of these watches bore a forged trade mark or a false trade description. He was sentenced to one month's imprisonment on each of the three offences, the sentences to run concurrently. 6. In Criminal Appeal No. 953, the appellant pleaded guilty to one charge of placing on board a vessel cargo without the consent of the owner and one charge of being in possession of 500 watches bearing a forged trade mark. He was sentenced to one months' imprisonment on the first charge and six months' on the second charge, the sentences to be concurrent. 7. Counsel, who appeared for all three appellants said that a custodial sentence in these cases was not warranted. He pointed out that these offences are normally dealt with in the Magistrates Court in Hong Kong by the imposition of a fine. Various grounds of appeal were submitted. It is only necessary to deal with one of these. In Criminal Appeal No. 953, the prosecution called a witness who may be described as an "expert witness" to testify to the fact that the watch trade in Hong Kong is being bedevilled by the large and increasing numbers of spurious watches being made in Hong Kong. In his evidence the witness stated that this is seriously damaging Hong Kong's reputation with the Swiss watch trade. The witness said that he was a "technical delegate" from the Swiss watch industry in Hong Kong and that he had had 22 years experience in the Swiss watch industry. 8. Counsel for the appellant objected to this evidence on two grounds. He said, first, that the witness was not an "expert witness" as that phrase is generally understood in law. Secondly, that even if that were conceded, his evidence amounted to very little since there was no factual evidence before the court on which he could base his opinion. 9. We do not think there is anything in either of these two submissions. The witness was an 'expert' in the sense that he was very well acquainted with the trade in Swiss watches. He gave, and we think correctly gave, evidence as to one aspect of that trade, namely that an increasing number of watches with spurious trade names or descriptions are being placed on the market thus damaging the trade in genuine watches. 10. There is no doubt that it was the evidence of this witness which influenced the magistrate to impose a custodial sentence in this case. There was evidence that the watches in this case were poor counterfeits of the genuine article. The ship on which the appellants were caught with the watches was just about to sail for West Africa, where there is a large yet unsophisticated market. There is no doubt that the reputation of Hong Kong as an exporter of watches might be affected by the conduct of the appellants. 11. Counsel for the appellants drew our attention to two cases in which the Supreme Court has substituted a fine for a term of imprisonment imposed in the Magistrates Court. These are Criminal Appeal Nos. 274 and 415 of 1973. These cases were decided purely upon their own particular facts. 12. In Criminal Appeal No. 274 the judge held that there was no evidence before the magistrate that the trade of Hong Kong would be damaged. 13. In Criminal Appeal No. 415, the judge specifically said that on the facts before him it was not a case for a prison sentence. On the other hand, he said that he was far from saying that a prison sentence may not be merited in this type of case. 14. In Criminal Appeal No. 950, the number of watches was considerable and shows a deliberate course of action which the appellant must have known was against the law and we think the custodial sentence was merited. In the circumstances that appeal is dismissed. 15. The same applies to Criminal Appeal No. 953. Again, the number of watches was considerable and we think that in this case, too, the appeal must be dismissed. 16. However, the circumstances of Criminal Appeal No. 952 are different. Here, there were only ten watches out of 389 which bore a forged trade mark or false description, and the appellant had a clear record. In this case, therefore, the court considered that justice would be best served if the appeal was allowed to the extent that a fine was imposed in place of a custodial sentence on each charge and we therefore ordered that the sentences of imprisonment should be quashed and a fine of $200 imposed for each offence: namely, $600 in all with a sentence of two weeks' imprisonment in default in each case, the sentences to be consecutive if served.
Representation: Bernacchi Q.C. & R. Tang (H.H. Lau & Co.) for Appellants. MacDougall, D.D.P.P., for Crown/Respondent. |